Opinion
12-06-2016
In re the PEOPLE of the State of New York ex rel. Robert GIST, Jr., Petitioner–Appellant, v. WARDEN, Eric M. Taylor Center, et al., Respondents–Respondents.
Seymour W. James, Jr., The Legal Aid Society, New York (Elon Harpaz of counsel), for appellant. Eric T. Schneiderman, Attorney General, New York (Mark H. Shawhan of counsel), for respondents.
Seymour W. James, Jr., The Legal Aid Society, New York (Elon Harpaz of counsel), for appellant.
Eric T. Schneiderman, Attorney General, New York (Mark H. Shawhan of counsel), for respondents.
RICHTER, J.P., MANZANET–DANIELS, FEINMAN, KAPNICK, GESMER, JJ.
Judgment (denominated a decision), Supreme Court, Bronx County (Alvin Yearwood, J.), entered November 12, 2015, denying the petition for a writ of habeas corpus, and dismissing the proceeding, unanimously affirmed, without costs.
Executive Law § 259–i(3)(f)(i) provides that a final parole revocation hearing "shall be scheduled to be held within ninety days of the probable cause determination," unless a statutory exception applies. This provision was satisfied by the commencement of petitioner's final parole revocation hearing, as scheduled, on April 13, 2015, 88 days after probable cause was found, notwithstanding that the hearing was adjourned, after four parole officers had testified that day, to allow the New York State Department of Corrections and Community Supervision to call a fifth parole officer to provide further material testimony (see e.g. People ex rel. Chesner v. Warden, Otis Bantum Correctional Ctr., 71 A.D.3d 499, 895 N.Y.S.2d 816 [1st Dept.2010], lv. denied 15 N.Y.3d 703, 2010 WL 2572527 [2010] ; People ex rel. Morant v. Warden, Rikers Is., 35 A.D.3d 208, 826 N.Y.S.2d 40 [1st Dept.2006], lv. denied 8 N.Y.3d 809, 834 N.Y.S.2d 90, 865 N.E.2d 1257 [2007] ).
In any event, even under petitioner's view that Executive Law § 259–i(3)(f)(i) requires the final hearing to be completed within 90 days of the probable cause determination, petitioner's counsel "consent[ed]" to the adjournments beyond the 90–day limit (Executive Law § 259–i[3][f][i] ). Counsel's belated objection to the final adjournment was ineffective to negate counsel's previous participation in scheduling and agreeing to that date.
Petitioner's claim that he was deprived of due process is unavailing (see Morrissey v. Brewer, 408 U.S. 471, 488, 92 S.Ct. 2593, 33 L.Ed.2d 484 [1972] ).